No.

21-902
================================================================================================================

In The
Supreme Court of the United States
---------------------------------♦---------------------------------

DOMINIC BIANCHI, et al.,

Petitioners,
v.

BRIAN FROSH, in his official capacity as

Attorney General of the State of Maryland, et al.,
Respondents.

---------------------------------♦---------------------------------

On Petition For Writ Of Certiorari

To The United States Court Of Appeals
For The Fourth Circuit

---------------------------------♦---------------------------------

AMICUS BRIEF OF AMICI CURIAE PROFESSORS

OF SECOND AMENDMENT LAW, CATO INSTITUTE,
JOHN LOCKE FOUNDATION, CENTER TO KEEP
AND BEAR ARMS, AND INDEPENDENCE
INSTITUTE IN SUPPORT OF PETITIONERS

---------------------------------♦---------------------------------

GEORGE A. MOCSARY DAVID B. KOPEL

UNIVERSITY OF WYOMING Counsel of Record
COLLEGE OF LAW INDEPENDENCE INSTITUTE
1000 East University Ave. 727 East 16th Ave.
Department 3035 Denver, CO 80203
Laramie, WY 82071 (303) 279-6536
(307) 766-5262 [email protected]
[email protected]
[Additional Counsel Listed On Inside Cover]

================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
TREVOR BURRUS
ILYA SHAPIRO
CATO INSTITUTE
1000 Mass. Ave. NW
Washington, DC 20001
(202) 842-0200
[email protected]
CODY J. WISNIEWSKI
CENTER TO KEEP AND BEAR ARMS
2596 S. Lewis Way
Lakewood, CO 80237
(303) 292-2021
[email protected]
JON GUZE*
JOHN LOCKE FOUNDATION
4800 Six Forks Rd.
Suite 220
Raleigh, NC 27609
(919) 828-3876
[email protected]
*Not admitted in this Court
 i

TABLE OF CONTENTS
Page
TABLE OF CONTENTS ...................................... i
TABLE OF AUTHORITIES ................................. iii
STATEMENT OF AMICI CURIAE ..................... 1
SUMMARY OF ARGUMENT .............................. 3
ARGUMENT ........................................................ 4
I. The Circuit Court majorities upholding ri-
fle bans are self-contradictory and con-
trary to this Court’s precedents ................ 4
A. The Fourth Circuit’s test contravenes
this Court’s Staples precedent, and
would have allowed prohibition of
most long guns used in colonial and
Founding-era America ......................... 4
B. The Seventh Circuit’s test contradicts
this Court’s Caetano precedent, and it-
self ....................................................... 7
C. The feeble version of intermediate
scrutiny employed by the Second Cir-
cuit would have made Heller come out
the other way ....................................... 10
II. Means-ends scrutiny is inapplicable to the
prohibition of constitutionally protected
arms ........................................................... 13
III. The correct understanding of arms “in
common use.” ............................................. 17
 ii

TABLE OF CONTENTS—Continued
Page
A. All bearable arms are presumptively
protected .............................................. 17
B. The presumption is rebutted by proof
that an arm is “dangerous and unu-
sual.” .................................................... 17
C. By every lower court measure of “com-
mon,” the rifles banned by Maryland
are common ......................................... 18
1. Total number .................................. 18
2. Number of jurisdictions .................. 19
3. Percentage of total .......................... 20
D. The level of generality for assessing
“common.” ............................................ 21
E. Law-abiding citizens, not the courts, de-
cide which common arms are appropri-
ate for their personal circumstances .... 25
F. “Common use” is not limited to self-
defense; it includes all lawful purposes ... 26
CONCLUSION..................................................... 28
 iii

TABLE OF AUTHORITIES
Page
SUPREME COURT CASES
Arizona v. Washington, 434 U.S. 497 (1978) ............16
Caetano v. Massachusetts, 577 U.S. 411 (2016) .... passim
City of Los Angeles v. Alameda Books, 535 U.S.
425 (2002) .................................................... 10, 11, 12
Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U.S.
327 (1987) ................................................................16
District of Columbia v. Heller, 554 U.S. 570
(2008) ............................................................... passim
Frisby v. Schultz, 487 U.S. 474 (1989) ........................12
Hosanna-Tabor Evang. Lutheran Church &
Sch. v. EEOC, 565 U.S. 171 (2012) ..........................15
Kennedy v. Louisiana, 554 U.S. 407 (2008) ................16
Loretto v. Telep. Manhattan CATV Corp., 458
U.S. 419 (1982) ........................................................16
Luis v. United States, 578 U.S. 5 (2016) .....................27
Marks v. United States, 430 U.S. 188 (1977) ..............12
McCullen v. Coakley, 574 U.S. 464 (2014) ..................13
McDaniel v. Paty, 435 U.S. 618 (1978)........................16
McDonald v. City of Chicago, 561 U.S. 742
(2010) ............................................................... passim
New York v. United States, 505 U.S. 144 (1992) .........16
Staples v. United States, 511 U.S. 600 (1994) .......... 4, 5
United States v. Booker, 543 U.S. 220 (2005) .............16
 iv

TABLE OF AUTHORITIES—Continued
Page
United States v. Miller, 307 U.S. 174 (1939) ..............14
Virginia v. Black, 538 U.S. 343 (2003) ........................17
Ward v. Rock Against Racism, 491 U.S. 781
(1989) .......................................................................12

OTHER CASES
Andrews v. State, 50 Tenn. 165 (1871) ................. 26, 27
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.
2011) ...................................................... 13, 14, 27, 28
Ezell v. City of Chicago, 846 F.3d 888 (7th Cir.
2017) ........................................................................28
Friedman v. City of Highland Park, 784 F.3d 406
(7th Cir. 2015)............................................ 8, 9, 14, 15
Heller v. District of Columbia, 670 F.3d 1244
(D.C. Cir. 2011) (“Heller II”) ............ 19, 20, 25, 26, 27
Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) .............18
Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en
banc). ....................................................... 4, 19, 20, 24
New York State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242 (2d Cir. 2015)
(“NYSRPA”) ..................................................... passim
United States v. Hughley, 691 F. Appx. 278 (8th
Cir. 2017) .................................................................13
Worman v. Healey, 922 F.3d 26 (1st Cir.
2019) ............................................................ 19, 20, 25
 v

TABLE OF AUTHORITIES—Continued
Page
U.S. CONSTITUTION
amend. I ................................................................ 15, 16
amend. II ............................................................. passim
amend. V .....................................................................16
amend. VI ....................................................................16
amend. VIII .................................................................16
amend. X .....................................................................16

BOOKS
AHEARN, BILL, MUSKETS OF THE REVOLUTION AND
THE FRENCH AND INDIAN WARS (2005) .......................5

BLACK’S LAW DICTIONARY (6th ed. 1990) .....................17

BROWN M.L., FIREARMS IN COLONIAL AMERICA:
THE IMPACT OF HISTORY AND TECHNOLOGY,
1492-1792 (1980) .......................................................6
GEORGE, J.N., ENGLISH GUNS AND RIFLES (1999) ..........6
GRINSLADE, TOM, FLINTLOCK FOWLERS: THE FIRST
GUNS MADE IN AMERICA (2005) ..................................6
HELD, ROBERT, THE AGE OF FIREARMS: A PICTO-
RIAL HISTORY (1957) ...................................................9

NICHOLAS J. JOHNSON, DAVID B. KOPEL, GEORGE

A. MOCSARY, E. GREGORY WALLACE, & DONALD
E. KILMER, FIREARMS LAW AND THE SECOND
AMENDMENT: REGULATION, RIGHTS, AND POLICY
(3d ed. 2021) .................................................... 8, 9, 21
 vi

TABLE OF AUTHORITIES—Continued
Page
KENNETT, LEE & JAMES LAVERNE ANDERSON, THE
GUN IN AMERICA: THE ORIGINS OF A NATIONAL
DILEMMA (1975) .........................................................6
MULLINS JIM, OF SORTS FOR PROVINCIALS: AMERI-
CAN WEAPONS OF THE FRENCH AND INDIAN WAR
(2008) .........................................................................6
PETERSON, HAROLD L., ARMS AND ARMOR IN COLO-
NIAL AMERICA 1526-1783 (Dover 2000) (Smith-
sonian 1956) ..............................................................6

LAW REVIEW ARTICLES

Kopel, David B. & Joseph G.S. Greenlee, The
Federal Circuits’ Second Amendment Doc-
trines, 61 ST. LOUIS U. L.J. 193 (2017) .............. 27, 28
Lund, Nelson, Second Amendment Standards of
Review in a Heller World, 39 FORDHAM URBAN
L.J. 1617 (2012) .......................................................22

OTHER AUTHORITIES
Beretta, 3032 Tomcat..................................................23
Exhibit A, Plaintiffs’ motion for summary judg-
ment in Parker v. District of Columbia, 311
F. Supp. 2d 103 (D.D.C. 2004) .................................21
Petition for Writ of Certiorari, Bianchi v. Frosh,
No. 21-1255 .......................................... 5, 7, 20, 23, 26
 vii

TABLE OF AUTHORITIES—Continued
Page
Respondent’s Brief, Bianchi v. Frosh, 858 Fed.
Appx. 645 (4th Cir. 2021) ........................................25
The Well-Armed Woman, Racking the Slide on
Your Gun ........................................................... 23, 24
 1

STATEMENT OF AMICI CURIAE1

Amici professors are law professors who teach
and write on the Second Amendment: Randy Barnett
(Georgetown), Royce Bardondes (Missouri), Robert
Cottrol (George Washington), Nicholas Johnson (Ford-
ham), Donald Kilmer (Lincoln), David Kopel (Denver),
Joyce Malcolm (George Mason), George Mocsary (Wyo-
ming), Joseph Muha (Akron), Joseph Olson (Mitchell
Hamline, emeritus), Michael O’Shea (Oklahoma City),
and Glenn Reynolds (Tennessee). Many of them were
cited by this Court in District of Columbia v. Heller and
McDonald v. City of Chicago. Their amicus brief in New
York State Rifle & Pistol Association v. City of New
York was cited by Justice Alito’s dissent. Oft-cited by
lower courts as well, these professors include authors
of the first law school textbook on the Second Amend-
ment, as well as many other books and law review ar-
ticles on the subject. They are further described at
https://davekopel.org/Briefs/Bianchi/professorbios.pdf.

1
No counsel for a party in this case authored this brief in
whole or part. No party or counsel for a party contributed money
intended to fund the preparation or submission of this brief. No
person other than amici and their members contributed money
intended to fund the preparation or submission of this brief. Pro-
fessor Mocsary provides consultation and research services to
Plaintiff Firearms Policy Coalition pursuant to a fixed-fee quar-
terly retainer. Under that agreement, he is expected to provide
approximately 20 hours of time to said Plaintiff. The instant mat-
ter does not fall under that agreement. No time spent on this brief
by Professor Mocsary has been, or will be, reported to said Plain-
tiff under that retainer. All parties were given 10 day notice and
have consented to the filing of this brief.
 2

Cato Institute is a nonpartisan public policy re-

search foundation that advances the principles of indi-
vidual liberty, free markets, and limited government.
Cato’s Robert A. Levy Center for Constitutional Stud-
ies was founded in 1989 to restore the principles of
constitutional government that are the foundation of
liberty.
John Locke Foundation was founded in 1990 as
an independent, nonprofit think tank. It employs re-
search, journalism, and outreach to promote Locke’s vi-
sion: responsible citizens, strong families, successful
communities, individual liberty, and limited constitu-
tional government.
Center to Keep and Bear Arms is a project of
the Mountain States Legal Foundation (MSLF), a Col-
orado-based nonprofit, public interest legal foundation.
MSLF was founded in 1977 to defend the Constitution,
protect private property rights, and advance economic
liberty. The Center was established in 2020 to advance
litigation in protection of all Americans’ natural right
to self-defense.
Independence Institute was founded in 1985,
dedicated to the eternal truths of the Declaration of In-
dependence. It is a nonprofit, nonpartisan 501(c)(3) ed-
ucational organization. The Institute has long been a
nationally recognized research center on firearms law
and policy.
---------------------------------♦---------------------------------
 3

SUMMARY OF ARGUMENT
Circuit court decisions upholding rifle bans like
those in this case rely on untenable reasoning. The
Fourth Circuit’s rule, at issue here, would authorize
prohibiting the most common arms of the colonial and
Founding periods: the all-in-one American long gun
that was made for hunting, personal defense, and mi-
litia use.
The Seventh Circuit purported to favor arms like
those of the Founding Era. Yet the court upheld a ban
on self-loading firearms, a type that preceded the Sec-
ond Amendment by a century-and-a-half.
The Second Circuit employed an especially unfa-
vorable version of intermediate scrutiny that considers
only the government’s evidence, and that does not con-
sider less restrictive alternatives. The First Circuit
second-guessed law-abiding citizens’ personal choices
of common defensive arms.
All four of this Court’s Second Amendment prece-
dents on arms bans—Caetano, Heller, McDonald, and
Miller—eschewed means-ends balancing. This Court’s
approach has always been categorial.
The rifles at issue here are “in common use,” as
lower courts have acknowledged. “Common use” is not
determined by how often a gun is fired in self-defense.
“Common use” encompasses all lawful uses, including
hunting and self-defense. Arms bans do not become
constitutional if they slice protected classes of arms
into smaller subclasses. Dick Heller’s 9-shot .22 caliber
 4

revolver was not particularly common, but handguns

are very common.
---------------------------------♦---------------------------------

ARGUMENT
I. The Circuit Court majorities upholding ri-
fle bans are self-contradictory and con-
trary to this Court’s precedents.
A. The Fourth Circuit’s test contravenes
this Court’s Staples precedent, and
would have allowed prohibition of
most long guns used in colonial and
Founding-era America.
The Fourth Circuit allows the prohibition of fire-
arms that are “like” those that are “most useful in mil-
itary service.” Kolbe v. Hogan, 849 F.3d 114, 126 (4th
Cir. 2017). By the Fourth Circuit’s interpretation, this
upholds a ban on semiautomatic rifles, id. at 156,
which are not used by any military in the world, and
which fire much more slowly than automatic rifles
(which modern militaries do use).
The Fourth Circuit’s test is inconsistent with Sta-
ples v. United States, 511 U.S. 600 (1994). That case
noted the “long tradition of widespread lawful gun
ownership by private individuals in this country,” and
explicitly distinguished common AR-15 rifles from the
military’s M-16 rifles. Id. at 602. Staples held that AR-
15 rifles, which “traditionally have been widely ac-
cepted as lawful possessions,” do not share the “quasi-
suspect character” of hand grenades, as M-16 rifles
 5

might. Id. at 601 (requiring prosecution to prove that

defendant knew that his defective rifle discharged two
rounds per trigger pull).
Even if semiautomatic rifles could be considered
“like” automatic military machine guns, the Fourth
Circuit’s test would uphold banning the firearms most
plainly protected by the Second Amendment.
As described in the petition, the rifles at issue are
widely owned for hunting and self-defense. Pet.Br. 22.
The same was true of most long guns that Americans
brought to militia service during the colonial and
founding periods.
“Perhaps the first identifiable style of American
firearm” was the bird-hunting long gun used by Dutch
and German settlers. BILL AHEARN, MUSKETS OF THE
REVOLUTION AND THE FRENCH & INDIAN WARS 101
(2005). These arms evolved, influenced by the English
and by immigrant French Huguenot gunsmiths:
The result was the development of a unique
variety of American long fowler. These Ameri-
can long guns served as an all-purpose fire-
arm. When loaded with shot, they were suited
to hunt birds and small game, and when
loaded with a ball, they could provide venison
for the table. In times of emergency, they were
needed for militia, and more than a few saw
service in the early colonial wars as well as
the Revolution.
Id.
 6

Unlike muskets, fowling pieces had lighter barrels

and stocks, and their muzzles were slightly flared to
increase birdshot’s velocity. J.N. GEORGE, ENGLISH
GUNS AND RIFLES 85 (1999) (1947); TOM GRINSLADE,
FLINTLOCK FOWLERS: THE FIRST GUNS MADE IN AMERICA
5 (2005). They lacked the musket’s swivels for sling at-
tachment. JIM MULLINS, OF SORTS FOR PROVINCIALS:
AMERICAN WEAPONS OF THE FRENCH AND INDIAN WAR 49
(2008). Fowlers and muskets nevertheless served sim-
ilar purposes. Muskets were used for bird hunting, and
fowling pieces for infantry. M.L. BROWN, FIREARMS IN
COLONIAL AMERICA: THE IMPACT OF HISTORY AND TECH-
NOLOGY, 1492-1792, at 85 (1980).

During the Revolution, fowling pieces were often

employed in militia service. Some were retrofitted with
bayonet mounts. GRINSLADE at 54, 63. “In times of In-
dian raids or war, the family fowling-piece served the
need for a fighting gun.” Id. at 5.
Because many people needed firearms that met
both militia requirements and hunting needs, in Amer-
ica, “civil and military uses of firearms dovetailed as
they had not generally done in Europe.” LEE KENNETT
& JAMES LAVERNE ANDERSON, THE GUN IN AMERICA 41
(1975). “Thus the distinction between military and
sporting arms is almost lost.” HAROLD PETERSON, ARMS
AND ARMOR IN COLONIAL AMERICA 1526-1783, at 179
(Dover 2000) (1956). Americans had developed what
collectors call the “semi-military” firearm. Id.
 7

Since colonial times, Americans have chosen ver-

satile firearms well-suited for hunting, personal pro-
tection, and community protection. Yet under the
Fourth Circuit’s test, all such firearms, from the
Dutch fowler onward, could be prohibited. They are
very “like” military firearms in that they were the
most-used guns for militia service.

B. The Seventh Circuit’s test contradicts

this Court’s Caetano precedent, and it-
self.
Each part of the Seventh Circuit’s idiosyncratic
three-part test contradicts Heller. Pet.Br. 19. Moreover,
the court misapplied its test. One item of the test asks,
“whether a regulation bans weapons that were com-
mon at the time of ratification or those that have some
reasonable relationship to the preservation or effi-
ciency of a well-regulated militia.” Friedman v. City of
Highland Park, 784 F.3d 406, 410 (7th Cir. 2015).
When the Massachusetts Supreme Judicial Court
later adopted a similar rule in Caetano for stun guns
and Tasers, this Court unanimously stated that such a
rule contradicted Heller:
[T]he [Massachusetts] court explained that
stun guns are not protected because they
“were not in common use at the time of the
Second Amendment’s enactment.” Id., at 781,
26 N.E.3d, at 693. This is inconsistent with
Heller’s clear statement that the Second
Amendment “extends . . . to . . . arms . . . that
 8

were not in existence at the time of the found-

ing.” 554 U.S., at 582. . . .
Caetano v. Massachusetts, 577 U.S. 411, 411-12 (2016).
Moreover, the Seventh Circuit did not follow its
own rule. The rifles banned by Highland Park (and
Maryland) are the modern equivalent of the versatile
long guns that were common in 1791. As hybrids well-
suited for hunting, self-defense, and community de-
fense, these modern self-loading rifles are more analo-
gous than other modern firearms to the most common
1791 militia arms.
A semiautomatic firearm is called a “self-loader”
because it reloads itself. That is, after the user presses
the trigger to fire one shot, the gun loads the next
round into the firing chamber, ready for the user to
press the trigger again. As of 1791, the self-loader was
a century-and-a-half old. The first commercially suc-
cessfully self-loader was the Lorenzoni pistol, intro-
duced in the first half of the seventeenth century, and
copied by gunsmiths in Europe and America. NICHOLAS
J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND
AMENDMENT: REGULATION, RIGHTS, AND POLICY online
ch. 23, at 2198-99 (3d ed. 2021).2
Of course, the rifles at issue here are more ad-
vanced than Lorenzonis. Technology improves contin-
uously, as the Founders knew; the hybrid long guns of
the American Revolution were better than their Dutch

2
http://firearmsregulation.org/www/FRRP3d_CH23.pdf.
 9

fowler ancestors. When the Second Amendment was

ratified, the state-of-the-art repeating firearm was the
Girandoni air rifle, which could shoot 21 or 22 rounds
in .46 or .49 caliber. Manufactured in Pennsylvania,
and famously carried on the Lewis & Clark Expedition,
the Girandoni was powerful enough to take an elk—
which is to say, it is more powerful than many of the
rifles banned by Maryland. Id. at 2206.
Self-loading, invented by Lorenzoni, was perfected
in the 1880s, starting with the Mannlicher Model 85
rifle, introduced in 1885. Id. at 2227.
Over the twentieth century and the first decades
of the twenty-first, firearm mechanics, self-loaders in-
cluded, have changed little; materials and manufactur-
ing have improved, such as with lightweight synthetic
stocks instead of wooden ones. Id. at 2231. In 1957,
British firearms historian Robert Held declared: “Al-
though the age of firearms today thrives with ten thou-
sand species in the fullest heat of summer, the history
of firearms ended between seventy and eighty years
ago. There has been nothing new since, and almost
certainly nothing will come hereafter.” ROBERT HELD,
THE AGE OF FIREARMS: A PICTORIAL HISTORY 186 (1957).
All semiautomatics “descend from” the models of the
1880s. Id. at 185.
Even if Friedman’s preference for Founding Era
arms types was valid under this Court’s precedents,
self-loading firearms should be protected under its
test.
 10

C. The feeble version of intermediate

scrutiny employed by the Second Cir-
cuit would have made Heller come out
the other way.
The Second Circuit upheld rifle bans under inter-
mediate scrutiny by applying an especially rights-
unfavorable version to the Second Amendment. Even
if Heller allowed intermediate scrutiny for bans on
common arms, interest-balancing requires a court to
weigh both parties’ evidence. Yet the Second Circuit
considered only the state’s evidence. The same meth-
odology would have upheld the handgun ban in Heller.
City of Los Angeles v. Alameda Books, 535 U.S. 425,
438 (2002) (plurality opinion), establishes that the first
step of intermediate scrutiny analysis is determining
whether the state’s evidence “fairly support[s]” its ra-
tionale. If the state meets its initial burden, the plain-
tiffs have an opportunity to “cast direct doubt on this
rationale, either by demonstrating that the [govern-
ment’s] evidence does not support its rationale or by
furnishing evidence that disputes the [government’s]
factual findings.” Id. at 438-39. “If plaintiffs succeed in
casting doubt on a [government] rationale in either
manner, the burden shifts back to the [government] to
supplement the record with evidence renewing sup-
port for a theory that justifies its ordinance.” Id. at 439.
But in New York State Rifle & Pistol Ass’n v.
Cuomo, 804 F.3d 242, 261 (2d Cir. 2015) (“NYSRPA”),
the Second Circuit considered only the government’s
evidence: “So long as the defendants produce evidence
 11

that fairly supports their rationale, the laws will pass

constitutional muster.” Id. Under Alameda Books, the
Second Circuit should have examined the plaintiffs’
evidence, which supported plaintiffs’ claims that the
prohibitions did not advance public safety and did en-
danger law-abiding citizens.
Under NYSRPA’s version of intermediate scrutiny,
the government will always win when it litigates
competently. Gun-rights cases often involve contested
statistics and social science. Plaintiffs, like the gov-
ernment, are entitled to have their evidence—experts,
studies, affidavits, etc.—considered. NYSRPA deprives
Second Amendment plaintiffs of a basic feature of our
adversarial system of justice.
Indeed, under NYSRPA’s methodology, the hand-
gun ban struck in Heller would have been upheld. Ac-
cording to NYSRPA, there are only two questions in
evaluating an arms ban:
(1) Is there an important government inter-
est?—Obviously yes, preventing criminals
from shooting people. Id. at 261.
(2) Is there evidence to “fairly support” the
inference that a ban could advance the gov-
ernment interest?—Yes. Id.
As detailed in Justice Breyer’s Heller dissent,
there is extensive social science evidence about hand-
gun misuse, which is disproportionate to the misuse
of other firearm types. Further, there is (disputed) so-
cial science evidence that handgun bans reduce hand-
gun crime. Heller, 554 U.S. at 693-704 (Breyer, J.,
 12

dissenting). Under NYSRPA, that ends the case. Plain-

tiffs’ evidence to the contrary is not considered.
Justice Kennedy’s concurring opinion in Alameda
Books, provides the controlling rule of the case: the
government “may not regulate the secondary effects of
[protected conduct] by suppressing the [protected con-
duct] itself.” Alameda Books, 535 U.S. at 445 (control-
ling opinion of Kennedy, J.); Marks v. United States,
430 U.S. 188, 193 (1977) (in fragmented decisions, the
narrowest opinion controls).
Here, Maryland’s statute is aimed at the second-
ary effects of criminal misuse of firearms. But the law’s
effect is suppressing the exercise of a constitutional
right. “A complete ban can be narrowly tailored but
only if each activity within the proscription’s scope is
an appropriately targeted evil.” Ward v. Rock Against
Racism, 491 U.S. 781, 799-800 (1989) (quoting Frisby v.
Schultz, 487 U.S. 474, 485 (1988)). Heller rejected the
notion that controlling the secondary effects of hand-
guns (criminal misuse) could be accomplished by ban-
ning handguns in general.
The Second Circuit also ignored intermediate
scrutiny’s requirement that the government show that
substantially less burdensome alternatives—such as a
thorough background-check system rather than prohi-
bition—were not available to achieve the government’s
ends. According to this Court’s rules of intermediate
scrutiny, “the government must demonstrate that alter-
native measures that burden substantially less speech
would fail to achieve the government’s interests, not
 13

simply that the chosen route is easier.” McCullen v.

Coakley, 574 U.S. 464, 495 (2014). But NYSRPA did not
consider relevant and available alternatives. NYSRPA,
804 F.3d at 259.

II. Means-ends scrutiny is inapplicable to the

prohibition of constitutionally protected
arms.
Although the Eighth Circuit adheres to a Heller-
like standard of review based on text, history, and tra-
dition, the other circuits have a adopted a two-part test
incorporating tiers of scrutiny.3 But Heller made clear
that banning arms typically possessed by law-abiding
citizens for lawful purposes is categorically unconsti-
tutional.
The distinction was recognized in a foundational
case for the Two-Part Test:
Both Heller and McDonald suggest that
broadly prohibitory laws restricting the core
Second Amendment right—like the handgun
bans at issue in those cases, which prohibited
handgun possession even in the home—are
categorically unconstitutional. . . . For all other
cases, however, we are left to choose an appro-
priate standard of review from among the
heightened standards of scrutiny the Court

3
See United States v. Hughley, 691 F. Appx. 278, 279 (8th
Cir. 2017) (unpublished) (“Other courts seem to favor a so-called
‘two-step approach.’ . . . We have not adopted this approach and
decline to do so here.”).
 14

applies to governmental actions alleged to in-

fringe enumerated constitutional rights.
Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir.
2011) (emphasis added).
This Court has addressed arms bans four times: in
Caetano, McDonald, Heller, and Miller. None of these
cases indicates that interest-balancing—such as a
heightened scrutiny analysis—is appropriate. For arms
prohibitions, the Court has twice expressly rejected
such an approach. Heller, 554 U.S. at 628-35; McDon-
ald v. City of Chicago, 561 U.S. 742, 785 (2010).
In addition, Justice Scalia joined Justice Thomas’s
dissent from denial of certiorari for Friedman:
Despite these holdings [in Heller and
McDonald], several Courts of Appeals—in-
cluding the Court of Appeals for the Seventh
Circuit in the decision below—have upheld
categorical bans on firearms that millions of
Americans commonly own for lawful purposes.
See 784 F.3d 406, 410-12 (2015). Because non-
compliance with our Second Amendment
precedents warrants this Court’s attention as
much as any of our precedents, I would grant
certiorari in this case.
....
The question under Heller is not whether
citizens have adequate alternatives available
for self-defense. Rather, Heller asks whether
the law bans types of firearms commonly used
for a lawful purpose—regardless of whether
 15

alternatives exist. 554 U.S. at 627-29. And

Heller draws a distinction between such fire-
arms and weapons specially adapted to un-
lawful uses and not in common use, such as
sawed-off shotguns. Id. at 624-25. The City’s
ban is thus highly suspect because it broadly
prohibits common semiautomatic firearms
used for lawful purposes. Roughly five million
Americans own AR-style semiautomatic rifles.
See 784 F.3d at 415 n.3. The overwhelming
majority of citizens who own and use such ri-
fles do so for lawful purposes, including self-
defense and target shooting. See id. Under our
precedents, that is all that is needed for citi-
zens to have a right under the Second Amend-
ment to keep such weapons. See McDonald,
561 U.S., at 767-68; Heller, supra, at 628-29.
Friedman v. City of Highland Park, 577 U.S. 1039, 1042
(2015) (Thomas, J., dissenting from denial of certio-
rari).
Bright-line rules declaring extreme government
actions categorically unconstitutional, without means-
ends scrutiny, are common. This is true even for rights
where many other questions involving less extreme
government actions are resolved by tiers of scrutiny or
other forms of balancing.
Under the First Amendment, for example, govern-
mental interference with “ecclesiastical decisions”,4
governmental regulation, prohibition, or rewarding of

4
Hosanna-Tabor Evang. Lutheran Church & Sch. v. EEOC,
565 U.S. 171, 188-89 (2012).
 16

religious beliefs as such,5 and government’s “excessive

entanglement” with religion are categorically uncon-
stitutional.6 None of these actions can be upheld even
if the government proves that its action could pass in-
terest-balancing.
Likewise, under the Fifth Amendment, a “perma-
nent physical occupation” is always a taking.7 The
Sixth Amendment “protection against double jeopardy
unequivocally prohibits a second trial following an ac-
quittal.”8 The Eighth Amendment embodies the cate-
gorical rules that sentences may never exceed the
maximum allowed by facts proven beyond a reasonable
doubt to the jury or admitted by the defendant,9 and
that capital punishment may never be imposed for
crimes against individuals not causing death.10 The
Tenth Amendment categorically forbids Congress from
commandeering state legislatures.11

5
McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opin-
ion).
6
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-
day Saints v. Amos, 483 U.S. 327, 338-39 (1987).
7
Loretto v. Telep. Manhattan CATV Corp., 458 U.S. 419, 426
(1982).
8
Arizona v. Washington, 434 U.S. 497, 503 (1978).
9
United States v. Booker, 543 U.S. 220, 226, 244 (2005).
10
Kennedy v. Louisiana, 554 U.S. 407, 412, 447 (2008).
11
New York v. United States, 505 U.S. 144, 154, 161 (1992).
 17

III. The correct understanding of arms “in

common use.”
A. All bearable arms are presumptively
protected.
“The Second Amendment extends, prima facie, to
all instruments that constitute bearable arms.” Heller,
554 U.S. at 582. “In other words, it identifies a pre-
sumption in favor of Second Amendment protection,
which the State bears the initial burden of rebutting.”
NYSRPA, 804 F.3d at 257 n.73; cf. Virginia v. Black,
538 U.S. 343, 369 (2003) (Scalia, J., concurring in part
and dissenting in part) (defining “prima facie evidence”
as “sufficient to establish a given fact” and “if unex-
plained or uncontradicted . . . sufficient to sustain a
judgment in favor of the issue which it supports.”)
(quoting BLACK’S LAW DICTIONARY 1190 (6th ed. 1990)).

B. The presumption is rebutted by proof

that an arm is “dangerous and unu-
sual.”
Heller noted that the Second Amendment’s protec-
tion of arms in common use “is fairly supported by the
historical tradition of prohibiting the carrying of ‘dan-
gerous and unusual weapons.’ ” 554 U.S. at 627. Indeed,
“unusual” is the antithesis of “common”—so an arm “in
common use” cannot also be “dangerous and unusual.”
“[T]his is a conjunctive test: A weapon may not
be banned unless it is both dangerous and unusual.”
Caetano, 577 U.S. 411, 417 (Alito, J., concurring).
Thus, “[b]ecause the Court rejects the lower court’s
 18

conclusion that stun guns are ‘unusual,’ it does not

need to consider the lower court’s conclusion that they
are also ‘dangerous.’ ” Id.

C. By every lower court measure of “com-

mon,” the rifles banned by Maryland
are common.
This Court has not precisely defined “common
use.” In Heller and McDonald, the Court struck bans
on handguns, “the most popular weapon chosen by
Americans for self-defense in the home.” Heller, 554
U.S. at 629. A detailed examination of their commonal-
ity was unnecessary.
The Caetano concurrence declared that “[t]he
more relevant statistic is that hundreds of thousands
of Tasers and stun guns have been sold to private citi-
zens, who it appears may lawfully possess them in 45
States.” 577 U.S. at 420 (Alito, J., concurring) (quota-
tions and brackets omitted). Because “stun guns are
widely owned and accepted as a legitimate means of
self-defense across the country,” they were common
enough for protection under the Second Amendment.
Id.

1. Total number.
“Some courts have taken the view that the total
number of a particular weapon is the relevant inquiry.”
Hollis v. Lynch, 827 F.3d 436, 449 (5th Cir. 2016). The
Second Circuit determined that semiautomatic rifles
 19

are “in common use” because “Americans own millions

of the firearms.” NYSRPA, 804 F.3d at 255. The D.C.
Circuit came to the same conclusion, because, at the
time of consideration, “Approximately 1.6 million AR-
15s alone [had] been manufactured since 1986.” Heller
v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir.
2011) (“Heller II”). The First Circuit assumed common
use, “albeit without deciding,” because “the plaintiffs
have shown that, as of 2013, nearly 5,000,000 people
owned at least one” such firearm. Worman v. Healey,
922 F.3d 26, 35-36 (1st Cir. 2019). The Fourth Circuit
decided that it “need not answer” the “common use”
question, but acknowledged evidence that “there were
at least 8 million” such firearms “in circulation in the
United States by 2013.” Kolbe, 849 F.3d at 128, 136.12

2. Number of jurisdictions.
When the Supreme Judicial Court of Massachu-
setts upheld a ban on stun guns because the “number
of Tasers and stun guns is dwarfed by the number of
firearms,” the Caetano concurrence explained that
such a test is untenable because “[o]therwise, a State
would be free to ban all weapons except handguns, be-
cause ‘handguns are the most popular weapon chosen
by Americans for self-defense in the home.’ ” Caetano,
577 U.S. at 420 (Alito, J., concurring) (quoting Heller,
554 U.S. at 629). The Caetano concurrence identified

12
Some numbers were based on counting a single platform—
such as the ArmaLite Rif le (AR), while others are based on mul-
tiple platforms.
 20

“the more relevant statistic” as the absolute number of

arms and the number of jurisdictions in which they are
lawful. Id. The rifles banned in Maryland are legal in
44 states. Pet.Br. 9.

3. Percentage of total.
Some courts consider whether weapons of the type
under consideration constitute a significant percent-
age of the total national arms stock. The Second Cir-
cuit found semiautomatic rifles to be “in common use”
when they “represent about two percent of the nation’s
firearms.” NYSRPA, 804 F.3d at 255. The First Circuit
assumed common use for “three percent of guns in the
United States,” owned by “one percent of Americans.”
Worman, 922 F.3d at 35. The Fourth Circuit noted that
the banned guns comprised nearly three percent of
firearms owned nationwide. Kolbe, 849 F.3d at 126. Ad-
ditionally, two of the banned types “accounted for ap-
proximately 20% of firearm sales in the United States
in 2012.” The guns “comprised between 18% and 30%
of all regulated firearm transfers in Maryland in 2013.”
Id. at 128. The D.C. Circuit found “common use” be-
cause “in 2007 this one popular model [AR-15] ac-
counted for 5.5 percent of all firearms, and 14.4 percent
of all rifles, produced in the U.S. for the domestic mar-
ket.” Heller II, 670 F.3d at 1261.13 These firearms are
even more common today. Pet.Br. 21-22.

13
The numbers cited vary because of differences in what was
counted—e.g., percent of modern sales versus percent of total fire-
arms owned.
 21

D. The level of generality for assessing

“common.”
This Court has demonstrated that commonality is
not to be determined by slicing arms types into subcat-
egories. Rather, a protected arm must be among “sorts”
or “kinds” of weapons that are “in common use at the
time.” Heller, 554 U.S. at 624, 627.
When assessing handgun bans, neither Heller nor
McDonald made any distinction between the two pri-
mary subcategories of handguns: revolvers and semi-
automatic pistols. Nor did the Court concern itself with
the unusual nature of the 9-shot, .22 caliber revolver—
far from the most popular type of handgun—that Mr.
Heller sought to possess.14
Revolvers are significantly less popular for self-de-
fense than semiautomatic pistols. JOHNSON ET AL., at
1985-88 (in 2019 American manufacturers produced
3,046,013 pistols and 580,601 revolvers).15 Moreover,
the large majority of revolvers hold 5 or 6 rounds. For
self-defense with a revolver, people relying on the di-
minutive .22 caliber are well in the minority.
But as Heller implicitly recognized, for any num-
ber of reasons some law-abiding citizens choose a .22

14
Heller was based on Dick Heller’s 2002 attempt to register
in the District of Columbia his 9-shot, .22 caliber High Standard
Buntline single action revolver. Plaintiffs’ Motion for Summary
Judgment, Exhibit A, Parker v. District of Columbia, 311 F. Supp.
2d 103 (D.D.C. 2004), https://web.archive.org/web/20111117110734/
http://www.gurapossessky.com/news/parker/documents/SJExhibitA.pdf.
15
http://firearmsregulation.org/www/FRRP3d_CH20.pdf.
 22

revolver for self-defense and other lawful purposes,

even though over 99 percent of other law-abiding citi-
zens choose something else.16
Just as Heller did not divide handguns into sub-
classes, Caetano did not subdivide or make distinctions
among handheld electroshock arms. The concurrence
described them as a “class of arms.” 577 U.S. at 418
(Alito, J., concurring) (emphasis added). The “class” in-
cluded “Tasers” (which eject electric prongs to a dis-
tance of several feet) and “stun guns” (which require
the user to touch the device to the attacker’s body). Id.
at 415 n.2, 419-20.
Because the Supreme Court performs the com-
monality analysis at the “sort,” “kind,” or “class” level,
lower courts should not have upheld prohibitions of a
subclass (or subsort or subkind) of rifles. This Court
should not allow its “common use” test to be employed
to ban a thin or thick slice of an otherwise-protected
class of arms.
Biathlon rifles are relatively rare. They are used
by serious competitors in the sport of winter biathlon,
which combines fast-paced cross-country skiing with
precision target shooting. A biathlon rifle is exquisitely

16
See Nelson Lund, Second Amendment Standards of Review
in a Heller World, 39 FORDHAM URBAN L.J. 1617, 1627-28 n.57
(2012) (“Whether or not any of the Justices examined the record,
the Court had to be referring to this specific revolver when it said:
‘Assuming that Heller is not disqualified from the exercise of Sec-
ond Amendment rights, the District must permit him to register
his handgun and must issue him a license to carry it in the
home.’ ”) (citing Heller, 554 U.S. at 635) (emphasis added).
 23

balanced, rugged, ultra-reliable in adverse weather,

and expensive.17
Rifles, as a class, are the type of firearm least
likely to be involved in crime. Pet.Br. 10. Biathlon ri-
fles, far less. If “common use” can be drilled down into
subtypes, then almost anything can be banned. The
government can win a case at part one of the two-part
test by showing that a particular subclass of arms is
not common: Biathlon rifles are not “common” com-
pared to many other types of guns. So the two-part test
ends at part one. Biathlon rifles not being “common,”
there is no Second Amendment issue, and the case is
over.
The same analysis applies to a subclass of low-
powered pistols from Beretta and Taurus: the “tip-up
barrel design.” In Beretta’s words, “Thanks to this de-
sign, you never need to rack the slide and you can load
that first round directly into the chamber. This is espe-
cially convenient in cold weather, or for people with
weaker hands.”18 So, too, for a person with only one
functional hand or arm. In more common semiauto-
matic pistols, the user must rack the slide backwards
to make the gun ready to fire. This requires either

17
Casual biathlon participants might use multi-purpose ri-
fles, such as a lightweight bolt-action .22 rifle.
18
Beretta, 3032 Tomcat, https://www.beretta.com/en/3032-
tomcat/.
 24

significant strength or well-developed technique.19 Al-

though tip-up pistols use relatively weak ammunition
(.22, .25, or .32 caliber), they are the right choice for
some individuals.
Neither .22 revolvers, biathlon rifles, nor tip-up
pistols are the most common arms. The total handgun
stock far outnumbers all of them combined. Dick Hel-
ler’s odd handgun is protected, despite its rarity as a
defensive arm. For the biathlon rifle, all other rifles,
and all other arms, the Heller rule is the same: classes,
not subclasses.
The Fourth Circuit’s “like” standard would allow
biathlon rifle confiscation under a different theory.
Like many modern sports (e.g., javelin, archery, fenc-
ing), biathlon deliberately mimics martial skills. The
first Winter Olympic biathlon-type competition, in
1924 at Chamonix, was called “military patrol.” When
Josef Stalin’s Soviet army attempted to annex Finland
in 1939-40, Finns, who could shoot precisely and ski
quickly, repelled the attackers in the Winter War and
saved Finland’s democracy. Combining skiing and
shooting was also the objective of the famed American
10th Mountain Division in the Italian Alps during
World War II. Biathlon rifles are “like” military arms,
as they are for an activity that emulates warfare. The
same is true for bows, arrows, swords, and javelins,
which are deadly weapons; their modern versions are

19
The Well-Armed Woman, Racking the Slide on Your Gun,
https://thewellarmedwoman.com/training-handling/racking-the-
slide-of-your-gun/ .
 25

“like” the weapons that were used for centuries for

warfare, hunting, or defense.

E. Law-abiding citizens, not the courts,

decide which common arms are appro-
priate for their personal circumstances.
Below, Respondents argued that the rifles in ques-
tion are unprotected because they are rarely fired in
self-defense. See Respondent’s Br. 10, Bianchi v. Frosh,
858 Fed. Appx. 645 (4th Cir. 2021). Similarly, the D.C.
Circuit upheld a rifle ban by pointing out that hand-
guns are used most often for self-defense and by stat-
ing that plaintiffs had not shown sufficient evidence
that the rifles “are well-suited to or preferred for the
purpose of self-defense or sport.” Heller II, 670 F.3d at
1262. In another case, the plaintiffs did detail why the
rifles were especially well-suited for lawful defense.
The First Circuit retorted that the same characteris-
tics also made the rifles more useful for criminals.
Worman v. Healey, 922 F.3d 26, 40 (1st Cir. 2019).
The First Circuit’s rationale is the same as Heller’s
dissent: “the very attributes that make handguns par-
ticularly useful for self-defense are also what make
them particularly dangerous.” Heller, 554 U.S. at 711
(Breyer, J., dissenting).
The Heller majority did not believe that criminal
use of common arms was a constitutionally sufficient
reason to prohibit possession by the law-abiding. Nor
did Heller attempt to quantify defensive handgun inci-
dents. The Court, instead, simply observed that many
 26

Americans “keep” and have “chosen” handguns for self-

defense. Heller, 554 U.S. at 629-30.
Similarly, millions of Americans keep the Mary-
land-banned firearms for self-defense and other lawful
purposes. Some defenders prefer rifles because rifles
have longer barrels than handguns, so they are gener-
ally more accurate. The most common caliber for the
rifles banned by Maryland is the .223, an intermediate-
power cartridge that is easier to handle, especially by
persons with limited upper body strength.

F. “Common use” is not limited to self-

defense; it includes all lawful purposes.
As detailed in Petitioners’ Brief, the banned rifles
are purchased for hunting, self-defense, target shoot-
ing, and other lawful purposes. Pet.Br. 22. Even if the
rifles were purchased solely for hunting, they would be
no less protected.
Self-defense is not the only Second Amendment
activity. The right encompasses arms “typically pos-
sessed by law-abiding citizens for lawful purposes,”
Heller, 545 U.S. at 625 (emphasis added). “The tradi-
tional militia was formed from a pool of men bringing
arms ‘in common use at the time’ for lawful purposes
like self-defense.” Id. at 624 (emphasis added).
Heller approvingly quoted the Supreme Court of
Tennessee: “the right to keep arms involves, necessarily,
the right to use such arms for all the ordinary pur-
poses.” Id. at 614 (quoting Andrews v. State, 50 Tenn.
 27

165, 178 (1871)). And Heller acknowledged that “most

[Americans in the Founding Era] undoubtedly thought
[the right] even more important for self-defense and
hunting” than for militia service. Id. at 599. The dis-
sent similarly recognized that “[w]hether [the Second
Amendment] also protects the right to possess and use
guns for nonmilitary purposes like hunting and per-
sonal self-defense is the question presented by this
case.” Id. at 636-37 (Stevens, J., dissenting).
McDonald summarized the “central holding in
Heller: that the Second Amendment protects a per-
sonal right to keep and bear arms for lawful pur-
poses, most notably for self-defense within the home.”
McDonald, 561 U.S. at 780; see also Friedman, 577 U.S.
at 1042 (Thomas, J., joined by Scalia, J., dissenting
from denial of certiorari) (“The overwhelming majority
of citizens who own and use such rifles do so for lawful
purposes, including self-defense and target shooting.
Under our precedents, that is all that is needed . . . un-
der the Second Amendment.”) (citation omitted); Luis
v. United States, 578 U.S. 5, 26-27 (2016) (Thomas, J.,
concurring) (“The right to keep and bear arms . . . im-
plies a corresponding right to . . . acquire and maintain
proficiency in their use”) (quotations and citations
omitted).
Every federal court of appeals to address the issue
found that the Second Amendment right protects other
lawful purposes. See David B. Kopel & Joseph G.S.
Greenlee, The Federal Circuits’ Second Amendment
Doctrines, 61 ST. LOUIS U. L.J. 193, 204-07 (2017). No-
tably, the Seventh Circuit twice struck restrictions
 28

on firing ranges for violating the Second Amend-

ment. Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.
2011); Ezell v. City of Chicago, 846 F.3d 888 (7th Cir.
2017).
---------------------------------♦---------------------------------

CONCLUSION
For the foregoing reasons, this Court should grant
the Petition for Writ of Certiorari.
Respectfully submitted,
DAVID B. KOPEL
Counsel of Record
INDEPENDENCE INSTITUTE
727 East 16th Ave.
Denver, CO 80203
(303) 279-6536
[email protected]
GEORGE A. MOCSARY
UNIVERSITY OF WYOMING
COLLEGE OF LAW
1000 East University Ave.
Department 3035
Laramie, WY 82071
(307) 766-5262
[email protected]
 29

TREVOR BURRUS
ILYA SHAPIRO
CATO INSTITUTE
1000 Mass. Ave. NW
Washington, DC 20001
(202) 842-0200
[email protected]
CODY J. WISNIEWSKI
CENTER TO KEEP AND BEAR ARMS
2596 S. Lewis Way
Lakewood, CO 80237
(303) 292-2021
[email protected]
JON GUZE*
JOHN LOCKE FOUNDATION
4800 Six Forks Rd.
Suite 220
Raleigh, NC 27609
(919) 828-3876
[email protected]
*Not admitted in this Court